Abdul Aziz Naji

This story was originally published on Truthout.

The UK action charity Reprieve, whose attorneys represent over a dozen prisoners at Guantánamo Bay, reports that former Guantánamo prisoner, Algerian citizen Abdul Aziz Naji, has been sentenced to three years in prison in Algeria. Reprieve says the charges were “of past membership in an extremist group overseas – a charge derived from the unsubstantiated accusations the US administration made against him in 2002.”

News reports state that prosecutors initially had asked for a ten-year prison sentence, and a 5,000 euro fine (over $6,000 US dollars).

The Reprieve press release states, “During his trial held in Algiers on Monday 16 January, the prosecutor presented no evidence of Mr Naji’s guilt – rather, the judge simply questioned him and produced a guilty verdict. His lawyer, Hassiba Boumerdassi, filed an appeal of his sentence and will request that he be released on bail pending retrial.”

When Naji was first forcibly returned to Algeria in 2010 – the first Guantánamo detainee removed to a country where he refused to go, for fear of returning there – he was, according to the Jurist, held initially “under a [Algerian] statute that allows for the detention of terror suspects for up to 12 days.” The charges under which he was held were never clarified at the time, but presumably were similar or the same for which he was recently sentenced.

Naji was subsequently released in July 2010 under judicial supervision, with the proviso he report to police authorities weekly. At the time, a statement by Algiers prosecutors, reported by Reuters Africa, bragged that Naji’s case had been “dealt with in the most complete transparency and in respect for the law, whether in terms of procedure or the length of his detention.”

Naji had been forcibly deported from Guantánamo to Algeria with the full knowledge and approval of Congress, which, at that time, had demanded 15 days advance notice of any Guantánamo transfer. Naji had previously stated he feared any return to Algeria, where he anticipated either repression by the government or by Islamic extremists. His forcible return, the first such non-voluntary expulsion of any Guantánamo prisoner, violated the principle of non-refoulement or non-return of prisoners to states where they have reason to expect torture or other mistreatment. The principle is part of the United Nations Convention Against Torture treaty, to which the US is a signatory.

The Obama administration, like the Bush administration before it, relies on diplomatic “assurances” by host countries that they will not maltreat returning prisoners. But a 2007 report by Human Rights Watch described the problems with such “assurances”: “Governments that engage in torture routinely deny it and refuse to investigate allegations of torture. A government that is already violating its international obligation not to torture cannot be trusted to abide by a further ‘assurance’ that it will not torture.”

In the case of Algeria, the 2010 State Department report on human rights in that country notes that, while torture is formally illegal in Algeria, there have been numerous charges of torture by state police. Furthermore, the Algerian government obstructs oversight on such matters by non-governmental and UN agencies. The report describes abuse of prisoners in order to obtain confessions. While some government agents have been tried and convicted for such abuse, the State Department reports notes, dryly, that in regards to abuse by state officials, “impunity remains a problem.” Even more, local Algerian human rights attorneys have said that prisoner abuse occurs “most often against those arrested on ‘security grounds.’”

In regards to prison and detention conditions, the report states, “Prison conditions generally did not meet international standards, and the government did not permit visits to military, high-security, or standard prison facilities or to detention centers by independent human rights observers.”

Revelations About Drugging of Detainees, Torture for False Confessions

Since his release, Naji has been vocal about the treatment he endured in US custody. in a July 28, 2010, interview with the Algerian paper El Khabar, only days after his forcible transfer, Naji told the world about maltreatment at the hands of the Americans. He charged Guantánamo authorities with using torture to make detainees confess to terror charges.

“They force detainees to take some medicines for three months to drive them crazy, loosing memory and committing suicide,” he said, adding, “I still remember how a Yemeni prisoner killed himself for he couldn’t resist to torture and sexual abuse practiced by the prison caretakers.” Two of the six purported Guantánamo suicides were Yemeni, Ali Abdullah Ahmed (also known as Salah al-Aslami) and Mohammed Salih al-Hanashi, but it is not clear to which prisoner Naji is referring.

Charges of drugging prisoners have been widespread, but have been difficult to verify. (See this April 2008 report by Joby Warrick at The Washington Post.) A Pentgon inspector general investigation on such drugging was completed in 2009, Titled “Investigation of Allegations of the Use of Mind Altering Drugs to Facilitate Interrogations of Detainees,” the report remains classified. A Freedom of Information Act request by this author for the report is now 16 months old. Last September, a Senate Armed Forces Committee spokesperson told Truthout the Office of Inspector General’s investigation did not substantiate allegations of drugging of prisoners for the “purposes of interrogation.”

The involuntary use of drugs on prisoners would violate a number of domestic and international laws, as well as basic ethical codes of the medical professions. Yet, under the guidelines of the current “Army Field Manual” (AFM), whose protocols govern all interrogations past and present at Guantánamo, only drugs that cause permanent, lasting harm are not allowable for interrogation use. The provision from an earlier version of the AFM that forbid use of drugs that could create a “chemically induced psychosis” was dropped from the manual in September 2006, or even earlier.

Naji also told El Khabar “about how some detainees had been promised to be granted political asylum opportunity in exchange of a ‘spying role’ within the detention camp. He added that once released, they are maintained as spies serving for the US, under the cover of political refugees.”

The use of spies recruited by the Americans from among Muslim detainees and suspects has been reported in numerous instances. Abdurahman Khadr, the brother of Guantánamo prisoner, Omar Khadr, was an admitted “asset” for the CIA, who once described how he was sent to Guantánamo as a fake prisoner to spy.

More recently, the Tarek Mehanna case raised a good deal of controversy with charges from Mehanna and supporters that he was targeted by the FBI because the 29-year-old Sudbury, Massachusetts, man repeatedly refused to become an informant.

The “Case” Against Abdul Aziz Naji

No public report has indicated to what “extremist group” Naji is accused of belonging. In the May 2008 Joint Task Force-Guantánamo Detainee Assessment leaked by WikiLeaks last year, US intelligence maintained that Naji had belonged to the Pakistani-based group Lashkar-e-Tayyiba. It also accused him of being “an identified al-Qaida courier.” The bulk of the accusations against him were levied by torture victim Abu Zubaydah, who supposedly said he had recruited Naji to be part of his “Martyrs Brigade.” Another torture victim, and one who the US relied upon to place Naji in Afghanistan, was Abd al-Rahim Abdul Razzak Janko, who was arrested by the Americans even though he had been tortured by the Taliban.

Abu Zubaydah was infamously tortured by the CIA, including being waterboarded 83 times, held in stress positions, had his head banged against a wall, suffered sleep deprivation and isolation. Mr. Zubaydah was flown from one CIA black site prison to another in the four or so years he was held in CIA captivity. Under later Department of Defense detention, it is not known exactly what ill treatment he may have endured, though it is known he is held in solitary confinement, and like the other Guantánamo detainees, is subject to interrogations under the current AFM. The manual has a special appendix known by the letter M that describes special interrogation techniques that cannot be used on regular prisoners of war. All told, AFM techniques used on Mr. Zubaydah could include, besides solitary confinement, modified forms of sleep deprivation, modified sensory deprivation or overload, stress positions, use of drugs and interrogation approaches meant to generate fear and humiliation.

Mr. Janko, who was released from Guantánamo in 2009, had provided supposedly incriminating information about approximately 20 other detainees, coerced from him via torture. After arrest and torture by the Taliban in 2000 for alleged sexual and espionage crimes, Mr. Janko was arrested by the US after 9/11 and was tortured from his first days while incarcerated at Kandahar Air Base. While the Taliban had used electric shock, stress positions, beatings on the soles of his feet (falaka) and water torture, to get Mr. Janko to falsely confess to sexual crimes and being an American and Israeli spy, the US relied upon sleep deprivation, stress positions, physical assault, attack by dogs and forced exercise to make him admit he was a terrorist. The US even used a Taliban videotape of Mr. Janko’s “confession” and tried (unsuccessfully, ultimately) to pass it off as the martyrdom video of an al-Qaeda suicide bomber.

Mr. Janko’s mental state deteriorated seriously, and he spent years in Guantánamo’s psychiatric ward, given antidepressant, antiseizure and antipsychotic medications. He subsequently filed suit against the US government for the torture, and is said to live under an assumed name in Belgium.

Both Abu Zubaydah and Abd al-Rahim Abdul Razzak Janko were two of the primary sources used to build the case against Naji. The other Algerian arrested with Naji, Musafa Hamilil, was released from Guantánamo without charges in July 2008 and returned to Algeria at that time. Once in Algeria, Mr.Hamlili was charged with “counterfeiting and affiliation to a militant group that is active abroad.” He was acquitted of those charges in February 2010.

But Naji was not so lucky. According to the Reprieve story, Naji is suffering “serious health complications” in regards to his leg, which was amputated after he stepped on a landmine in 2001, while doing charity work in Kashmir. The US accused him of being a landmine expert, but Naji told his Combatant Status Review Hearing that he had nothing to do with mines or the planting of mines, and admitted to some details because of serious beatings. “I had a difficult time when I was first transferred to Cuba … I was tortured and made to tell things against myself,” Naji told the Guantánamo military hearing. “The interrogators forced me to say these things, because I was scared to be punished.”

His family is reportedly concerned about the deterioration of Naji’s health while imprisoned at El Harache prison in Algiers. His attorney, Hassiba Boumerdassi, reports his condition is “worsening by the day.” Reprieve charges that Naji has been denied adequate health care.

Katie Taylor, a “Life After Guantánamo” caseworker for Reprieve stated, “It is outrageous that Mr Naji is being punished again for the same discredited accusations that the US used to hold him in Guantánamo for eight years without charge or trial – this time in his own country. Algerian authorities must restore his right to a fair trial and overturn his conviction on faulty charges for which the prosecutor did not even bother to introduce evidence.”

Jeffrey Kaye, a psychologist living in Northern California and a regular contributor to Truthout and The Public Record, blogs about civil liberties and issues revolving around the US government’s torture program at The Dissenter. He can be reached at sfpsych at gmail dot com. Follow Jeff on Twitter: @Jeff_Kaye

Iraqi Prime Minister Nouri Maliki. Photo/Wikimedia.

Human Rights Watch is charging that, despite U.S. government assurances that it helped create a stable democracy, the reality is that it left behind a “budding police state” —  cracking down harshly during 2011 on freedom of expression and assembly by intimidating, beating, and detaining activists, demonstrators, and journalists.

The organization’s Middle East and North Africa director, Sarah Leah Whitson, warns that “Iraq is quickly slipping back into authoritarianism as its security forces abuse protesters, harass journalists, and torture detainees.”

Its World Report 2012 attributes the downward trajectory to the security services of Prime Minister Nuri al-Maliki” and armed gangs.

The report notes that in February, HRW “uncovered a secret detention facility controlled by elite security forces who report to the military office of the Prime Minister. The report added, “The same elite divisions controlled Camp Honor, a separate facility in Baghdad where detainees were tortured with impunity.”

The 676-page report report says, “Given the violent forces resisting the “Arab Spring,” the international community has an important role to play in assisting the birth of rights-respecting democracies in the region.”

The report documents a wide range of human rights abuses. For example, it says, “In the weeks before the last convoy of US troops left Iraq on December 18, Iraqi security forces rounded up hundreds of Iraqis accused of being former Baath Party members, most of whom remain in detention without charge.”

The pullout of U.S. troops has been marked by an “apolitical crisis and a series of terrorist attacks targeting civilians that have rocked the country.” But Iraqi-on-Iraqi violence is not new and is unconnected to the US exit. A number of US Embassy cables released by Wikileaks refer to the torture of prisoners in Iraqi custody and of knowledge of some of it by US troops.

The annual report, which covers the state of human rights in some 90 countries, says that, during nationwide demonstrations in Iraq to “protest widespread corruption and demand greater civil and political rights,” security forces “violently dispersed protesters, killing at least 12 on February 25, and injuring more than 100. Baghdad security forces beat unarmed journalists and protesters that day, smashing cameras and confiscating memory cards.”

Earlier in the year, “in one of the worst incidents, government-backed thugs armed with wooden planks, knives, and iron pipes, beat and stabbed peaceful protesters and sexually molested female demonstrators as security forces stood by and watched, sometimes laughing at the victims,” the report charges.

In May, the report says, the Council of Ministers approved a Law on the Freedom of Expression of Opinion, Assembly, and Peaceful Demonstration, which “authorizes officials to restrict freedom of assembly to protect ‘the public interest’ and in the interest of ‘general order or public morals.’ This law still awaits parliamentary approval.

HRW comments that freedom of expression fared little better as “security forces routinely abused journalists covering demonstrations, using threats, arbitrary arrests, beatings, and harassment, and confiscating or destroying their equipment.”

On September 8, the report says, “An unknown assailant shot to death Hadi al-Mahdi, a popular radio journalist often critical of government corruption and social inequality, at his home in Baghdad. Immediately before his death, HRW says al-Mahdi had received several phone and text message threats not to return to Baghdad’s Tahrir Square, which was the focal point for the weekly demonstrations.”

Earlier, after attending the February 25 “Day of Anger” mass demonstration, security forces arrested, blindfolded, and severely beat him and three other journalists during a subsequent interrogation,” HRW says.

In January 2012, HRW says it “observed that Iraqi authorities had successfully curtailed the Tahrir Square anti-government demonstrations by
flooding the weekly protests with pro-government supporters and undercover security agents. Dissenting activists and independent journalists for the most part said that they no longer felt safe attending the demonstrations.”

The report continues, “Prison brutality, including torture in detention facilities, was a major problem throughout the year. In February, Human Rights Watch uncovered, within the Camp Justice military base in Baghdad, a secret detention facility controlled by elite security forces who report to al-Maliki’s military office.”

Beginning in late 2010, the report charges, Iraqi authorities transferred more than 280 detainees to the facility, which was controlled by the Army’s 56th Brigade and the Counter-Terrorism Service.

HRW added that “the same elite divisions controlled Camp Honor, a separate facility in Baghdad where detainees were tortured with impunity. More than a dozen former Camp Honor detainees told Human Rights Watch that detainees were held incommunicado and in inhumane conditions, many for months at a time. Detainees said interrogators beat them; hung them upside down for hours at a time; administered electric shocks to various body parts, including the genitals; and repeatedly put plastic bags over their heads until they passed out from asphyxiation.”

HRW also weighed in on the human rights situation in Iraqi Kurdistan. In what it called the “Silenced Spring,” HRW’s Samer Muscati recounts that  the Kurdistan Regional Government “promised a new era of freedom for Iraqi Kurds, but it seems no more respectful of Kurdish rights to free speech than the government that preceded it.”

He added, “In a time when the Middle East is erupting in demands to end repression, the Kurdish authorities are trying to stifle and intimidate critical journalism.”

In March, Human Rights Watch interviewed more than 20 journalists in Kurdistan covering the protests and found that security forces and their proxies routinely repress journalists through threats, arbitrary arrests, beatings, and harassment, and by confiscating and destroying their equipment.

And Iraqi authorities appear to be pulling no punches. Zana Ali Ghazi, 32, a reporter for the Kurdistan News Network (KNN), a satellite television channel affiliated with the Kurdish opposition party, Goran, said that while he was trying to report on a protest in the city of Saeed Sadiq on March 15, “eight armed men, some in uniform, cracked three of his ribs and beat him with wooden clubs and Kalashnikovs until he lost consciousness. ‘They told me that if I continued to cover this type of news, they would kill me’,” Ghazi told HRW.

Kurdistan authorities have repeatedly tried to silence Livin Magazine, one of Iraqi Kurdistan’s leading independent publications, and other media. The international community should end its silence and condemn these widening
attacks, Human Rights Watch said.

A Livin reporter told Human Rights Watch that when he called the Minister of Peshmerga (Kurdistan security forces), on April 24, the minister threatened Livin’s editor, Mira, with death. The reporter says the conversation is on tape but that no one from the Iraqi authorities had made any move to investigate.

In Sulaimaniya on the night of May 11, security forces detained and beat a Kurdistan News Network reporter, Bryar Namiq, breaking his hand.

In Arbil, two journalists, who HRW says are afraid to be named for fear of reprisal, charged that on May 18 eight men in civilian clothes chased after them in late April. The men appeared in two vehicles on the street just before the journalists were supposed to meet with a regional official who had asked for a meeting with some members of the media.

HRW says the journalists believe that the men were plainclothes security forces who were aware of the meeting and were trying to kidnap them.

The HRW Report says that Soran Umar, a protest organizer and freelance journalist, has been in hiding since April 19. “I have not slept at home since then,” he told Human Rights Watch on May 17. “My sin is that I am criticizing the undemocratic acts of KRG and the two ruling parties, that is all. The security forces have tried to kidnap me, and they have ordered my arrest. They even tried to kidnap my son.”

These examples appear to be a small fraction of abuses carried out by Iraqi government authorities against journalists — Reporters Without Borders has tallied 44 physical attacks against media workers and outlets and 23 arrests.

Which prompted this thought from HRW’s Sarah Leah Whitson: “Eight years after the United States removed Saddam Hussein in the name of protecting the rights of Kurds, it is standing by silently as the government it helped to install in Kurdistan abuses and represses the population. US President Obama noted in his speech on May 20 the flourishing democracy in Iraq, but the reality is that government-sponsored fear and repression continue to fester there.”

William Fisher has managed economic development programs for the U.S. State Department and the U.S. Agency for International Development in the Middle East, North Africa, Latin America, Asia and elsewhere for the past 25 years. He has supervised major multi-year projects for AID in Egypt, where he lived and worked for three years. He returned later with his team to design Egypt’s agricultural strategy. Fisher served in the international affairs area in the administration of President John F. Kennedy. He began his working life as a reporter and bureau chief for the Daytona Beach News-Journal and the Associated Press in Florida. He now reports on a wide-range of issues for a number of online journals.

This picture of Abu Zubaydah was included in his classified Guantanamo Detainee Assessment Brief released last month by WikiLeaks.

This exclusive report was originally published by Truthout on March 30, 2010. It was written by investigative reporter Jason Leopold.

The Justice Department has quietly recanted nearly every major claim the Bush administration made about Abu Zubaydah the alleged al-Qaeda leader who was the first suspected terrorist subjected to the torture of waterboarding and other White House-approved “enhanced interrogation techniques.”

In a federal court filing, Justice backed away from the Bush administration’s statements that Zubaydah was the No. 2 or No. 3 official in al-Qaeda who had helped plan the 9/11 attacks, as well as even earlier claims from the Clinton administration that he was directly involved in planning the 1998 embassy bombings in East Africa.

The US government’s retreat underscores yet another problem with President George W. Bush’s use of torture. Besides its illegality and immorality, torture can be applied to suspected terrorists who have been falsely identified and who thus don’t possess the expected information, which can lead frustrated interrogators to escalate the torture until the subject provides something, whether true or not.

Such false expectations appear to have been a factor in the case of Zubaydah, who was captured in Pakistan on March 28, 2002. He appeared to respond cooperatively to FBI interrogators using “rapport-building” techniques, but his failure to supply details that the CIA had anticipated led the agency to obtain high-level permission to subject him to the near-drowning experience of waterboarding and other torture techniques.

After those techniques were cleared by the Justice Department’s Office of Legal Counsel in mid-summer 2002 – and were sanctioned by Vice President Dick Cheney and other senior Bush administration officials – CIA interrogators applied the methods to Zubaydah In their frustration, they ultimately waterboarded him 83 times before concluding that many of his claims of ignorance were truthful.

In recent months, former Bush speechwriter Marc Thiessen has been on a public relations campaign promoting his book, “Courting Disaster,” in which he defended the torture of Zubaydah, claiming that he reviewed classified intelligence that revealed Zubaydah’s torture produced actionable intelligence that thwarted imminent plots against the United States.

The Justice Department has now backed away from the Bush administration’s more extreme claims in a 109-page court document filed in US District Court in Washington last September in response to 213 discovery requests from Zubaydah’s attorneys in his habeas corpus case, which demands evidence to support his continued detention at Guantanamo Bay, Cuba.

In the filing, the Justice Department asked the judge presiding over the case to deny virtually every discovery request sought by Zubaydah’s attorneys, explaining, in some instances, that the US government no longer relied upon the explosive allegations that President Bush and other top officials made about Zubaydah after he was captured and tortured in 2002.

For instance, the document refutes Bush’s direct statements about Zubaydah, including a claim that he was one of al-Qaeda’s “top operatives plotting and planning death and destruction on the United States.”

For the first time, the government officially admitted that Zubaydah did not have “any direct role in or advance knowledge of the terrorist attacks of September 11, 2001,” and was neither a “member” of al-Qaeda nor “formally” identified with the terrorist organization.

Retreat’s Impact

The government’s retreat also could add to the mounting criticism of US Appeals Court Judge Jay Bybee, who in August 2002 as head of the Office of Legal Counsel signed memos authorizing the torture techniques that were applied to Zubaydah and other “high-value” detainees.

At the time, Bybee asserted, based on information he received from the CIA, that Zubaydah “is one of the highest ranking members of the al-Qaeda terrorist organization,” “has been involved in every major terrorist  operation  carried out by  al-Qaeda,” and was “one of the planners of  the September 11 attacks.” Bybee approved the harsh interrogation as necessary to thwart pending attacks on US interests, which the CIA claimed Zubaydah knew about.

While backing away from the extravagant claims of the Bush era, the Obama administration says Zubaydah should still be detained based on his “actions” as an “affiliate” of al-Qaeda.

The Justice Department filing alleged that Zubaydah “supported enemy forces and participated in hostilities” and “facilitat[ed] the retreat and escape of enemy forces” after the US invaded Afghanistan in October 2001.

The government acknowledged that its case against Zubaydah is based entirely on the first six volumes of his diaries that he wrote beginning in 1992 and an undated “propaganda video [Zubaydah] recorded before his capture in which [he allegedly] appears on camera expressing solidarity with Usama Bin Laden and al-Qaida.”

The government’s new charges, according to the court filing, include allegations that “[Zubaydah] was present in [the Afghan city of] Kandahar in November 2001, and a number of prominent terrorist figures converged on Kandahar around the same time,” including self-professed 9/11 mastermind Khalid Sheikh Mohammed. But the government does not “specify whether any of these figures met during that that time period.”

Zubaydah’s attorneys say the new allegations are baseless and have asked the government for “evidence that would undermine an ‘insinuation that [Zubaydah's] presence in Kandahar … was related to the presence of known terrorists in the city’ is vague and insufficiently specific and is not supported by any allegations about whether [Zubaydah] in fact was present in Kandahar or for what purpose.”

Zubaydah’s attorneys claim that “the persons whom [Zubaydah] assisted in escaping Afghanistan in 2001 included ‘women, children, and/or other non-combatants’” and that the government has evidence to support those assertions. The lawyers also questioned the government’s history of falsehoods about their client.

“The Government’s accounts frequently have been at variance with the actual facts, and the government has generally been loath to provide the facts until forced to do so,” said Zubaydah’s attorney, Brent Mickum, in an interview.

“When the Government was forced to present the facts in the form of discovery in Zubaydah’s case, it realized that the game was over and there was no way it could support the Bush administration’s baseless allegations. So it changed the charges.”

No Formal Allegiance

In seeking to block Zubaydah’s discovery motions, the Justice Department also said the government was no longer contending that Zubaydah “was a ‘member’ of al-Qaida in the sense of having sworn bavat (allegiance) or having otherwise satisfied any formal criteria that either [Zubaydah] or al-Qaida may have considered necessary for  inclusion in al-Qaeda.

“Nor is the government detaining [Zubaydah] based on any allegation that [Zubaydah] views himself as part of al-Qaida as a matter of subjective personal conscience, ideology or worldview. Rather, [the government's] detention of [Zubaydah] is based on conduct and actions that establish [Zubaydah] was ‘part of’ hostile forces and ‘substantially supported’ those forces.”

That retreat contradicts initial claims made by senior Bush administration officials, including Defense Secretary Donald Rumsfeld, who described Zubaydah as a “close associate of [Osama bin Laden], and if not the number two, very close to the number two person in the organization. I think that’s well established.”

Even after Zubaydah’s interrogators apparently apologized to him for that mistaken impression – at his Combatant Status Review Tribunal hearing, Zubaydah said “they told me sorry we discover that you are not number three [in al-Qaeda], not a partner, even not a fighter” – the Bush administration continued to hype his role.

John Bellinger, legal adviser to Secretary of  State Condoleezza Rice, said during a June 2007 briefing about Guantanamo Bay detainees that Zubaydah, who was transferred to Guantanamo in 2006, helped  plan the 9/11 attacks and was “extremely dangerous.”

But the Justice Department now says “the Government has not contended in this [habeas] proceeding that [Zubaydah] had any direct role in or advance knowledge of the terrorist attacks of September 11, 2001, so [to] the extent that this request seeks information ‘tending to show … that [Zubaydah] did not know of the planned attacks of 9/11′, the request seeks evidence about contentions the Government has not made.”

The Justice Department also asked US District Court Judge Richard Roberts, who is presiding over the  habeas case, to deny defense requests for evidence that would “undermine”  government claims that Zubaydah worked on bin Laden’s “military and security plan to confront  an American counterattack” in Khost,  Afghanistan, after 9/11.

“The Government does not rely on any contention that [Zubaydah] did this work as an ‘al-Qaida’ deputy or because he was subject to al-Qaida command,” according to the court document.

Blocking a KSM Interview

And the Justice Department opposed Zubaydah’s lawyers’ request to question Khalid Sheikh Mohammed about whether he met Zubaydah, when the two were allegedly in Kandahar at the same time in November 2001.

“It is difficult to imagine how any answer from Khalid Sheikh Mohammed would substantially help [Zubadyah],” the government filing said. “Even if Khalid Sheikh Mohammed were to say he did not meet with Petitioner while they were in Kandahar, the fact that [Zubaydah's] presence in Kandahar coincided with the presence of major terrorist figures in Kandahar would still weigh in favor of [his continued] detention.”

According to lawyer Mickum, the government’s “entirely new position” about Zubaydah was revealed last year to in a 44-page Factual Return that included more than 2,000 pages of exhibits.

“I’m not surprised at all that the Government has dropped the old charges against our client and is alleging new charges against him,” Mickum said in an interview. “That is their tried-and-true modus operandi. That’s exactly what they did with my client Bisher al Rawi. He was initially charged with associating with a known al-Qaeda figure in London.

“Unfortunately, Bisher was associating with him at the express request of Britain’s MI5 [intelligence service]. After we established that he [Bisher] worked for MI5, the US simply changed the charges against him, alleging that he had terrorist training in Bosnia and Afghanistan.

“Once again, we were able to show those charges were utterly bogus when we proved that Bisher had never left England from 1998 until his fateful business trip to Africa, where he was arrested by the CIA, rendered to the ‘Dark Prison’ in Afghanistan and tortured, tortured at Bagram Air Force base and tortured in Guantanamo.

“What all these cases have in common is torture, and [Zubaydah's] case has that in spades. Given, the government’s history, it is not likely they would simply let him go and apologize. No, when their case falls apart, they re-jigger the evidence, and come up with new charges and [say] ‘we will defend the new charges with the same zeal we defended the earlier bogus charges.’”

Zubaydah’s attorneys argued in his initial petition for habeas corpus filed in February 2008 that he was not a member of al-Qaeda, that he had no knowledge of any terrorist operations, and that the military camp he was alleged to be affiliated with, Khaldan, was closed by the Afghan Taliban after refusing to let it go under the formal control of bin Laden and al-Qaeda.

“We have never deviated from that position, and now the government admits that we were correct all along,” Mickum said.

Indeed, the Justice Department’s response agrees that Khaldan was “organizationally and operationally independent” of al-Qaeda’s camps. The filing also backed off other claims made by Bush administration officials that Zubaydah knew the identities of specific individuals who trained at Khaldan and later went on to al-Qaeda-operated camps and allegedly took part in terrorist activities.

“The Government has not contended in this proceeding that Petitioner selected or knew the identities of specific persons who were selected to leave Khaldan for training at al-Qaida camps,” the filing states.

Undermining 9/11 Report

The US government’s new position also undercuts the 9/11 Commission’s report as it relates to Zubaydah. The report called him the leader of Khaldan.

The 9/11 report added that Zubaydah was a “major figure” in the “Millennium plot,” claiming he was a mastermind behind a plan to bomb a hotel in Jordan and Los Angeles International Airport.

The 9/11 report cited several  intelligence memoranda from then-counterterrorism czar Richard Clarke that Zubaydah was planning “a series of major terrorist attacks” on Israeli and possibly US targets and was working closely with bin Laden. Clarke declined numerous requests for comment.

Terrorist suspicions about Zubaydah predated the 9/11 attacks. Indeed, in the infamous Aug. 6, 2001, Presidential Daily Brief titled, “Bin Laden Determined to Strike in US,” he was identified as bin Laden’s “lieutenant” and alleged to have “helped facilitate” the plot to detonate a bomb at LAX.

FBI officials obtained that information from Ahmed Ressam, who was convicted in the LAX plot in April 2001. In exchange for a lighter sentence, Ressam cooperated with the government and identified alleged terrorists, including Zubaydah, who Ressam said was a key figure in al-Qaeda, ran Khaldan and had close connections to bin Laden. Ressam also said Zubdaydah told him in 1998 that, independent of bin Laden, he was preparing his own attack against the United States. Ressam later recanted his statements.

When asked about what the 9/11 Commission was told regarding Zubaydah, Mickum suggested that the panel was lied to by the CIA.

“After torturing our client, the CIA knew he was never a member of al-Qaeda and that he had no knowledge of any al-Qaeda terrorist activities,” Mickum said. “And this fact was confirmed after other members of al-Qaeda like [Khalid Sheikh Mohammed] and the [alleged mastermind of the USS Cole bombing] al-Nashiri were tortured.”

In an interview last year, Jack Cloonan, a former FBI special agent assigned to the agency’s elite bin Laden unit, said the CIA and the Bush administration were flat wrong in designating Zubaydah as a top official in al-Qaeda.

“To cast him and describe him as the al-Qaeda emir or leader for the subcontinent or worse … I think was a mistake. … Based on his age and ethnicity, [he] would [n]ever be brought into the inner circle of al-Qaeda,” Cloonan said.

There was also the question of Zubaydah’s personality. “My partner had a chance to look at a lot of Abu Zubaydah’s diaries [which forms the basis of the government's case], poems and other things that he has written and he said that after reading this you just come away with the feeling that this is a guy who can’t be trusted or be given huge amounts of responsibility.”

Zubaydah began keeping a diary in 1992, after he suffered a severe head injury while fighting communist forces in Afghanistan. The injury left “significantly impaired both his long- and short-term memory,” states a Jan. 14, 2009, motion his attorneys filed related to his diaries.

“Long after his 1992 injury, once [Zubaydah] had recovered the ability to speak and write, he began to keep a diary. It is his memory. Without it, he is lost.”

The diary now appears to be the chief element of the US government’s remaining case against him.

Baltazar Garzón. Photo/Wikimedia

The Spanish Judge whose work triggered the investigation that nabbed Chilean dictator Augusto Pinochet back in 1998 believes that Spain could bring charges against six Bush Jr. administration officials for clearing the way for the use of torture during the Iraq war – but he is being blocked by charges making him the culprit.

On 17 January 2012, Al Jazeera reported that Spanish judge Baltasar Garzon had “gone on trial in the country’s Supreme Court on [three separate] charges of abusing judicial powers.”

According to West Chester University history professor Lawrence Davidson, Spanish and US authorities want even the remotest possibility of charges against Bush Administration officials to go away – quietly. To this end Spain is attempting to silence “a very important truth-teller (who has) conducted a number of investigations into violations of international law against torture.”

The truth-teller is Baltasar Garzón Real, 57, the Spanish jurist who in 1998 obtained a request for the extradition from the UK of former Chilean president, General, Augusto Pinochet, for the alleged deaths and torture of Spanish citizens. The former dictator was undergoing medical treatment in London.

Garzón was indicted in April 2010 for exceeding his authority when investigating crimes committed by the Franco regime that were included in an amnesty, and suspended on 14 May 2010, pending trial. He has been given permission to work as a consultant at the International Criminal Court.

Garzon used the principle of universal jurisdiction to go after Chilean dictator Augusto Pinochet back in 1998, and said in March 2009 that Spain could now use the same principle to bring charges against Bush Jr. officials.

He charged that, “At least four men who are Spanish citizens, and also former prisoners at the Guantanamo Bay prison, have accused the U.S. military of torturing them.”

It was at this point, Davidson claims, that the U .S. government appears to have placed Garzon in a category that would also include Wikileaks case figures, (Pfc. Bradley) Manning and impresario Julian) Assange – “the category of the dangerous truth-teller.”

Davidson notes that the U.S. Ambassador to Spain in 2009, Eduardo Aguirre, describes his actions (in a diplomatic cable made public by Wikileaks in 2010) in relation to the Garzon investigation as follows, “…behind the scenes we have fought tooth and nail to make the charges disappear.”

Davidson says the significant word here is “disappear” for “there are two approaches to suppressing an unwanted truth. The first is to create a counter-story that makes the truth appear untrue. The second is to simply suppress all evidence, all references, all interest so that the particular truth just ‘disappears’.”

He declares that the U.S. ambassador, Eduardo Aguirre, “managed to get the cooperation of Spain’s Chief Prosecutor, Javier Zaragoza, who is quoted in another U.S. diplomatic cable (also made public by Wikileaks) to the effect that he had a plan to ‘embarrass’ Garzon into dropping his case against the Bush officials by misrepresenting Garzon’s actions in previous cases. This sounds like a bit of blackmail.”

However, he adds, Garzon did not relent and now he is on trial for “abusing judicial powers” in this and other cases.

Garzon and his supporters, which include almost every human rights group on the planet, claim that the charges are politically motivated and, “to be sure, the entire affair appears similar to the questionable rape charge facing Assange in Sweden.”

Davidson documents that the U.S. Ambassador to Spain in 2009, Eduardo Aguirre, described his actions (in a diplomatic cable made public by Wikileaks in 2010) in relation to the Garzon investigation. He wrote:

“…behind the scenes we have fought tooth and nail to make the charges disappear.” The significant word here is “disappear” for there are two approaches to suppressing an unwanted truth. The first is to create a counter-story that makes the truth appear untrue. The second is to simply suppress all evidence, all references, all interest so that the particular truth just “disappears.”

Davidson says, “This is precisely the outcome the U.S. government would like to see.”

He notes that Aguirre managed to get the cooperation of Spain’s Chief Prosecutor Javier Zaragoza, who is quoted in another U.S. diplomatic cable (also made public by Wikileaks), to the effect that he had a plan to “embarrass” Garzon into dropping his case against the Bush officials by misrepresenting Garzon’s actions in previous cases. “This sounds like a bit of blackmail,” Davidson says.

He adds that Garzon did not relent and now he is on trial for “abusing judicial powers” in this and other cases.

“Garzon and his supporters, which include almost every human rights group on the planet, claim that the charges are politically motivated and, to be sure, the entire affair appears similar to the questionable rape charge facing Assange in Sweden,”  Davidson charges.

In the case of Garzon, the Spanish Public Prosecutor (different than the Chief Prosecutor) has recommended acquittal on all three charges and yet there is still serious doubt that this will happen. If he is found guilty on any of the charges, Garzon “could be banned from serving as a judge for 20 years, in what would be a career-ending blow.”

Davidson says, “This is precisely the outcome the U.S. government would like to see.”

The good news is that this battle to silence Garzon” has not yet intimidated all other Spanish judges.” On January 20, another Spanish judge , Pablo Rafael Gutierrez, took up the case of the former Spanish citizens who allege torture at Guantanamo Bay. This judge, again used the principle of universal jurisdiction, and noted that the United States government has consistently refused to investigate the Spanish citizen’s charges.

James Goldston, the executive director of Open Society Justice Initiative, described the situation this way, “These crimes [such as torture] are universal crimes and it is very clear that until the United States holds to account those responsible for these crimes, other judicial actors in other countries are going to press for accountability.”

Davidson concurs. He says, “The most powerful and influential government in the world, the one with its capital in Washington, D.C., is going to fight to halt these foreign efforts. And so, we have a war that seeks to replace the truth with either lies or historical black holes.”

“One of the major themes of George Orwell’s classic novel, 1984, is the control of information…if government can control all media and all public records it can either impose a lie as truth or simply make selected past events disappear from society’s collective memory,” Davidson recalls.

“Who controls the past…controls the future: who controls the present controls the past.” Is this not what the United States government is trying to do in the case of its policy of torture: manipulate and hide the truth so people will ignore it and then forget it? And is this not what almost every country tries to do relative to their present crimes or those embedded in their pasts?

Davidson finds it “really amazing just how common this sort of manipulation is. And, the reason it is relatively easy for governments to get away with it is because the average man and woman cares mainly about little truths and not big ones.”

He continues: “Little truths are local truths. Don’t be misled to think that little means unimportant because that is not the case. Little truths are the truths that make possible successful daily interactions and that, of course, makes them very important indeed. Thus, one major reason life can go on relatively smoothly is that, most of the time, you can take as true what others tell you. That this is so means we can rely on friends, have stable relationships with spouses and children, and maintain successfully operating offices, business arrangements, etc. When the little truths start to become lies, these relationships break down.”

And finally, “Alleged big truths are the ones governments and the major media outlets tell the masses. When the U.S. government tells its citizens that unregulated capitalism will make the nation strong and prosperous, or that there must be a war to prevent Iraq from using weapons of mass destruction; when the major American media outlets tell their viewers and readers that Iran is pursuing nuclear weapons or Israel is ‘just like us’,” they are shaping perceptions that are not just local but regional and national. The problem is that, historically, most alleged big truths turn out to be big lies.”

He concludes: “Yet truth-tellers, like Manning, Assange and Garzon have good historical memories and they do notice and do care. They realize that when big truths turn out to be big lies people suffer–they suffer in the millions, bombs range down from the skies, economies falter and the public sphere of life becomes like a poisoned well. That is why accountability for the crimes hidden behind big lies is so important. That is why no government, no politician, no media organization should be allowed to manipulate the truth about the past or the present. On this the future depends.”

William Fisher has managed economic development programs for the U.S. State Department and the U.S. Agency for International Development in the Middle East, North Africa, Latin America, Asia and elsewhere for the past 25 years. He has supervised major multi-year projects for AID in Egypt, where he lived and worked for three years. He returned later with his team to design Egypt’s agricultural strategy. Fisher served in the international affairs area in the administration of President John F. Kennedy. He began his working life as a reporter and bureau chief for the Daytona Beach News-Journal and the Associated Press in Florida. He now reports on a wide-range of issues for a number of online journals.

This is the front cover of a pamphlet produced by a Kuwaiti-based anti-Guantanamo organization to try and win the release of two Kuwaiti prisoners, pictured on the cover of the pamphlet, who are detained at the detention facility. The commander of Guantanamo, Rear Adm. David Woods, accused one of the detainee's attorneys of "smuggling" the pamphlet into Guantanamo three weeks before he issued a widely condemned order calling for a review of detainees' legal mail. Image: Lt. Col. Barry Wingard

This report was written by investigative reporter Jason Leopold and originally published on Truthout.

Early last month, Air Force Capt. Michael Schwartz was summoned into the office of Rear Adm. David Woods, the new commander of Guantanamo, and was accused of “smuggling” into the detention facility an anti-Guantanamo pamphlet that featured the photographs of two Kuwaiti detainees, Fayiz al-Kandari and Fawzi al Odha.

Schwartz, a military attorney and a member of al-Kandari’s legal team, was taken aback.

He flatly denied that he or any other lawyer defending al-Kandari “smuggled” the pamphlet into Guantanamo [al Odha is represented by a civilian attorney but the detainee does not speak with him]. Schwartz told Woods that if he was being accused of committing a crime he wanted to speak with an attorney. Woods dismissed Schwartz and the issue was not raised again.

But then several weeks later, Woods issued an order that authorizes a review team to read all legal mail sent to detainees already charged with war crimes, which includes al-Kandari, and other prisoners who are likely to be prosecuted before military commissions to ensure the material they receive from their attorneys does not contain any “contraband,” such as the anti-Guantanamo pamphlet Schwartz was accused of smuggling into the facility.

A group that calls itself the International Anti-Guantanamo Coalition (IAGC), which is made up of Kuwaiti activists, produced the four-page pamphlet. Al-Kandari’s Kuwaiti-based attorney, Adel Abdulhadi, is a also a member of the IAGC. The organization was launched in November with a stated goal of shutting down Guantanamo and securing the release of al-Kandari and al Odha.

The pamphlet is written in Arabic. It contains photographs of the prison and a picture of the Statue of Liberty dressed in orange prison garb, the color detainees wore when they first arrived at the prison facility. Inside the pamphlet is a picture of Lt. Col. Barry Wingard, the lead attorney on al-Kandari’s defense team, who is quoted about his efforts to free al-Kandari and have him turned over to the custody of the Kuwaiti government. There are also photographs and statements from Kuwaiti government officials and al Odah’s father speaking about the need to shut down Guantanamo.

Wingard, a veteran of the Bosnian and Iraq wars, confirmed the allegation Woods leveled against Schwartz during an interview with Truthout. He said the prison commander never told Schwartz whether the pamphlet was found in al-Kandari’s or al Odah’s cell, but he “certainly implied it.”

Wingard said he described the pamphlet to al-Kandari during a recent visit to Guantanamo recently and al-Kandari denied ever having seen it.

“The first thing I said when I found out about this is ‘someone is planting shit’ and trying to pin it on the attorneys,” said Wingard. “To this date, neither Commander Woods nor anyone else from Joint Task Force-Guantanamo has extended the courtesy of addressing me in this matter and has not shared any conclusions of an investigation, if one was ever conducted.”

A Defense Department spokesman did not return calls or emails for comment.

Still, Wingard doesn’t understand how the pamphlet found its way to Guantanamo in the first place. He and Schwartz first laid eyes on it during a trip they took to Kuwait in November to meet with government officials there to discuss ways to try and “facilitate [al-Kandari's] release back to Kuwait’s state of the art rehabilitation center, built at the request of the Bush administration, which is currently vacant,” Wingard said.

“I saw the pamphlets for the first time as they were being unwrapped from cellophane in Kuwait during the first full week of November,” Wingard said. “We were in Kuwait for two weeks, from November 7 through November 21. My attorney was questioned about smuggling it into Guantanamo during the first few days of December. The pamphlet somehow got to Guantanamo before Capt. Schwartz did.”

Wingard said the pamphlet was first distributed to members of the Kuwaiti Parliament and passed out during a protest in front of the US Embassy in Kuwait on November 20 that attracted hundreds of people. He suspects the pamphlet made the rounds inside the embassy and was subsequently sent to Guantanamo by a US official or someone from “another government agency,” a euphemism used to describe the CIA.

“That’s the only explanation for how this document ended up at Guantanamo,” Wingard said. “When I heard about the incident with Capt. Schwartz I thought something is about to happen at Guantanamo. Why else would they plant a document I had just seen come from the printing press in Kuwait?  Now I think we know. “

Wingard believes the issue surrounding the pamphlet is part of a larger effort orchestrated by the US government to sabotage his efforts to secure al-Kandari’s release from Guantanamo, whose petition for habeas corpus was denied two years ago.

Wingard said it started in late October, when Guantanamo officials began to conduct a “cursory review” of all of al-Kandari’s correspondence with him for reasons that are still unknown.

Then, three days before Wingard arrived in Kuwait last November, the Pentagon released to the media what Wingard characterized as a “propaganda video” that showed several detainees apparently enjoying a life of indefinite detention. One of the detainees in the video, he claims, is al-Kandari.

Still, it’s unclear whether the confrontation between Woods and Schwartz played any part in the Guantanamo commander’s decision to implement new and expanded rules authorizing the review of attorney-client communications.

At a pretrial hearing this week in the military commission of Abd Al-Rahim al-Nashiri, the alleged mastermind of the USS Cole, Navy Cmdr. Andrea Lockhart, a member of the team prosecuting the high-value detainee, told a military judge the reason Woods issued the order was because “material that was getting in, like Inspire magazine, that should not have been getting in.”

Inspire magazine was a slick English-language glossy that was produced by an arm of al-Qaeda and edited by Samir Khan, a Pakistani US citizen who was killed in a drone strike in Yemen last September along with Al-Qaeda in the Arabian Peninsula propagandist Anwar al-Awlaki, another US citizen who the US government placed on a kill list.

Lockhart did not disclose whether the issue of Inspire, first published in June 2010, was found inside a detainee’s cell or somewhere else on the prison grounds. Nor did she say whether Joint Task Force-Guantanamo, which operates the prison facility, launched an investigation to determine how the magazine was brought onto the island. However, Lockhart, like Woods, seemed to suggest a defense attorney was the likely suspect.

A Defense Department spokesman did not respond to emails or phone calls seeking answers to those queries either.

Richard Kammen, al-Nashiri’s chief civilian defense counsel, denied that the detainee was the recipient of Inspire.

Mail Review Originally Limited to High-Value Detainees

Woods’ December 27 order expanding the review of legal mail to a larger segment of the Guantanamo prison population in Guantanamo appears to have been sparked by an unknown incident that took place in early October at Camp 7, the top-secret facility where 14 high-value detainees are held, a month before al-Nashiri’s military commission got underway.

Several attorneys representing detainees in habeas corpus cases learned that month that Woods, who had just been named commander of Guantanamo in August, had ordered a search of the cells and that prison staff had been reading, reviewing and confiscating detainees’ legal mail.

The habeas corpus attorneys, all of who hold top-secret security clearance and operate under a separate set of rules related to the review of legal mail, immediately contacted Justice Department lawyers, objecting to what was then an unwritten policy implemented by Woods. The attorneys noted that his policy violated attorney-client privilege. One habeas attorney was assured by Justice Department that the review only applied to the high-value detainee camp and that his client, who is not a high-value detainee, would be spared.

In a statement provided to Truthout October 14, Lt. Col. Joseph Todd Breasseale, a Defense Department spokesman, explained that Woods “directed that a security search be undertaken of detainee cells and materials in Camp 7.”

“This security search is not in response to any particular security threat and does not involve detainees in other [Joint Task Force-Guantanamo] detention facilities,” Breasseale said at the time.

Nine lawyers representing al-Nashiri and other high-value detainees charged with war crimes responded to Woods’ new directive by sending a letter to William Lietzau, deputy secretary of defense for detainee affairs, demanding he order Woods to “cease and desist the seizure, opening, translating, reading and reviewing of attorney-client privileged communications.”

The legal mail issue then arose at the start of al-Nashiri’s tribunal in November. At that time, Navy Cmdr. Thomas Welsh, the senior legal official at Guantanamo, testified that the search of the high-value detainees’ legal mail was necessary so as to ensure it did not contain “incendiary” magazines, such as Inspire, and other material that could pose a security threat. Welsh did not provide further detail about the circumstances that ultimately led to the crackdown in Camp 7 in October.

But Chief Military Commissions Judge James Pohl ordered prison officials to stop reading al-Nashiri’s legal mail. A month later, just a few weeks after Woods accused Schwartz of smuggling the anti-Guantanamo pamphlet into the prison, Woods issued the order expanding the inspection of legal mail, originally limited to Camp 7, to include about 30 other detainees.

Wingard said, in the past, when he sent mail to al-Kandari at Guantanamo it was received by a Defense Department liaison who “printed it off and put it in sealed envelope which was then given to the government.”

“The government would then unseal the envelope in the presence of Fayiz and hand him the confidential mail,” he said.

Now, Woods order states that a team made up of former government lawyers, translators and Department of Defense and law enforcement officials—a privilege review team—under contract to the Pentagon, would conduct the review of the privileged attorney-client communications and it would be done outside the presence of the detainee. He said attorneys must agree to the new rules in writing in order to communicate with their clients. The policy has since been roundly criticized.

“As a lawyer, I believe that this flagrant violation affecting the privacy of attorney-client, is unconscionable and far below the standards that America once stood for,” said Abdulhadi, al-Kandari’s attorney in Kuwait.

The American Bar Association, in a letter sent to Secretary of Defense Leon Panetta, said the policy needs to be immediately reversed.

“The American justice system depends on the essential role of lawyers in counseling their clients,” wrote ABA President Wm. T. (Bill) Robinson III in a letter sent to Secretary of Defense Leon Panetta, urging that Woods’ order be reversed. “This includes providing zealous and effective counsel, even to those accused of heinous crimes against this nation and its people.”

On the heels of Woods’ December 27 order, Marine Col. Jeffrey Colwell, the Pentagon’s chief defense counsel for military commissions, directed military and civilian attorneys defending detainees before military commissions to immediately stop sending mail to the prisoners and not to comply with Woods’ order because it violates the attorney-client privilege and codes of professional conduct.

The issue threatens to derail the tribunals, which Congress and the Obama administration overhauled in 2009. Pohl, the chief military commissions judge, expects to resolve the matter within the next two weeks.

Guard, Attorney Singles Out Interrogators

If “incendiary” reading material was the true catalyst behind Woods’ order, then it’s likely the interrogators who work at Guantanamo are to blame, a former prison guard said.

“They are the only ones who would have the incentive or motive” to distribute a “magazine like Inspire,” said the former guard, who requested anonymity because he is still on active duty.

During interrogations, the former guard said interrogators, as a way of “building rapport with detainees,” would offer prisoners food, books, magazines, pornography, games, pictures, extra recreation time, and cigarettes.

“This has gone on since Guantanamo opened ten years ago,” the former guard said. “These are things the detainees are not supposed to have in their cells and it’s a major source of frustration for the guard force because it violates the standard operating procedure. The guard force follows the SOP and takes it seriously, but the interrogators break the rules in the SOP all the time without telling anyone. The interrogators run the show.”

The former guard said he recalls two incidents within the past couple of years to back up his claims and both involved interrogators allowing two detainees to hang pictures in their cells, which is prohibited, in exchange for their cooperation. One detainee was given a picture of his hometown and another detainee received a picture of his family.

When a guard walked through the prison block to conduct “shake downs of cells” and saw the photographs, they were confiscated and the guard wrote up a report that was sent to his commanding officer. The detainees, according to the former Guantanamo guard, then complained to their interrogators and the photographs were later returned.

Brent Mickum, a habeas corpus attorney who represents Abu Zubaydah, the first high-value detainee captured after 9/11, said he too believes interrogators are responsible for the distribution of magazines like Inspire.

“The idea that an attorney would take into Guantanamo a periodical or a document that he or she knew to be proscribed is outrageous,” said Mickum, who holds a top-secret security clearance. He and other habeas attorneys already operate under a strict protective order that requires all materials they mail and/or bring to the detainees they represent to first be reviewed and approved by a separate privilege review team based in Washington, DC. “No attorney in the 600 or so I have interacted with over the years would ever do such a thing. No attorney would take the chance of jeopardizing the arduous steps they had to go through to obtain security clearance so prisoners could be represented by defense counsel and risk it by bringing in Inspire magazine. The only way such a magazine or document would get to a prisoner is through an interrogator who was trying to reward him for providing intelligence.”

The former guard and two military intelligence officials said as of late 2011 as many as 300 interrogations per month were still taking place at Guantanamo. Wingard said al-Kandari was interrogated as recently as last July by someone believed to be an interrogator about his thoughts on “world politics and Osama Bin Laden’s death.”

Documents declassified and released by the Pentagon in two years ago to former Secretary of Defense Donald Rumsfeld show that in 2003 he said Guantanamo needed to be turned into a “long-term interrogation facility.”

As far as Woods’ new order, Mickum said he’s not surprised.

“We don’t write [Zubaydah] because we’re worried about the Guantanamo staff reading our mail,” Mickum said. “We’ve been working on the assumption for some time that they will and have already looked at our legal mail, regardless if there’s an order in place now allowing just that.”

Wingard said the “desired effect” of Woods’ order is to “taint the attorneys and harvest intelligence from us by reading our legal mail.”

“What’s astounding,” Wingard added, “is that we are military officers with top-secret security clearances and law licenses who go to war with your sons and daughters. What Commander Woods’ order essentially says is that ‘we don’t trust you or the legal system you are sworn to protect.’”

In the meantime, per Colwell’s instructions, Wingard has not been sending mail to al-Kandari, who has been detained at Guantanamo for a decade, or Abdul Ghani, an Afghani Wingard also represents who has been held at the prison Guantanamo since 2003.

Denied a visa was Richard Sollom, deputy president of the US-Based Physicians for Human Rights (PHR), who was hoping to attend the trial of doctors and nurses that treated injured protestors during months of unrest last year.

He left for Dubai, from where he told The Washington Post, “I am quite stunned. This was the first time a member of an international rights organization came to Bahrain after authorities promised to respect human rights and told us we can come and see for ourselves.

“We can see now that not much has changed,” he added.

Sollom thus became the second huan rights executive to be denied entry to Bahrain. Brian Dooley of Human Rights First, a major US-based human rights organization, applied for a visa but received a letter from Bahrain’s Minister for Human Rights and Social Development, Fatima Al Booshi, on January 11th suggesting he should delay his entry until the end of February.

In his reply, Dooley reminded the Minister that she told him on November 24th 2011 that non-government organizations (NGOs) would have access to Bahrain if they gave “five days’ notice of their arrival”. Brian informed the “Human Rights” Ministry of his proposed visit next week, on December 20th.

Bahrain’s Foreign Minister, Sheikh Khalid bin Ahmed bin Mohammed Al-Khalifa, also assured human rights groups that NGOs would have “unfettered access to Bahrain.”

In his letter to the Minister, Dooley also noted  that, at the release of the Bahrain Independent Commission of Inquiry (BICI) report in November, King Hamad had assured the world that ‘any Government which has a sincere desire for reform and progress understands the benefit of objective and constructive criticism,’ and that the day of the report of the BICI report ‘turns a new page of history.’ ”

Calling this a backward step for the Kingdom, Faisal Fulad, President of the Bahrain Human Rights Society (BHRWS), said: “His Majesty the King has made it clear that Bahrain has nothing to hide when he opened the country up to the world in October, facing the truth of an independent commission which reported last year’s democratic protests.”

He added: “So why are we now back to this? By not allowing a human rights activist to enter the kingdom, we are giving conflicting messages to the world that will now be asking, once again – is Bahrain a free and democratic country or not?”

He suggested a “return to an offer of talks put on the table last March” by the Crown Prince and the Deputy Supreme Commander.” Members of the opposition have made similar calls.

The Crown Prince had proposed a National Dialogue that included talks on seven key points: A parliament with full authority; a government that represents the will of the people; a review of naturalization; fair voting districts; the combating of corruption; state property; and addressing sectarian tension.

Bahrain’s King and his family are Sunni Arabs. Most of the Bahraini population consists of Shia Muslims and foreign workers. The Shias have long-standing complaints of discrimination against them in jobs, housing and social acceptance.

“Bahrain’s leadership has taken many brave steps forward in the last year to show that democracy is alive in the kingdom, but this move seems to take us back to stage one,” Fulad said, adding:

“I believe this is a time for the second phase of dialogue and to concentrate on HRH the Crown Prince’s seven points. At the same time, reforms should be stronger so that people will believe reform is happening.”

Meanwhile, human rights defenders, medics, students and others targeted by the Bahraini government in its crackdown on pro-democracy efforts continue to face abusive detention despite growing calls for their release.

One of those calls came from United Nations High Commissioner for Human Rights Navi Pillay called for the unconditional release of all Bahraini detainees imprisoned after a military trial. Human Rights First (HRF) noted that the Bahraini government had failed to comply with that request and, in fact, “is taking steps to delay the appeals of those accused.”

“Yesterday, a group of students from the University of Bahrain who were sentenced to 15 years each by the military court had their appeal hearing postponed until March. Five of them remain in Bahrain’s Jaw Prison,” said HRF’s Dooley.

“Their case and others like it make clear that Bahrain’s leaders are ignoring key calls for reform issued by Commissioner Pillay and even the Kingdom’s own Bassiouni Commission,” he said.

In addition to the students, the Bahrain regime continues to contest the appeals of others sentenced by the military court, including 20 medics who appear to have been prosecuted for treating injured protestors and telling the media about the nature and extent of injuries.

Dr. Nada Dhaif is one of the medics sentenced to 15 years after a trial in military court. Dr. Dhaif was summoned by the police for a four-hour interrogation on December 25.  During that interrogation, she was warned to keep a low profile, an apparent government response to her decision to speak with the media and human rights organizations about how she and others were tortured in detention.

Dr. Dhaif told Dooley, “I am being targeted for telling the world the continuing truth about Bahrain. Members of my family are also being harassed by the regime. I have only ever advocated peaceful reform but am being threatened for my human rights advocacy.”

Local human rights activists also report ongoing concerns about treatment in custody. Hassan Oun, aged 18, was rearrested today after speaking to a local human rights organization. During previous interrogations, Oun said he was raped by a security officer.

That officer allegedly later called Oun after his release and threatened to rearrest him and rape him until he died. According to Maryam Al Khawaja of the Bahrain Centre for Human Rights, Oun was recently arrested again in what she said was revenge against him for speaking to their center.

Every indication points away from the Royal Family’s willingness to engage in discussions of reform and reverse the variety of heinous human rights abuses committed by the country’s security apparatus.

For most democracies in the international community, the King’s double-dealing has triggered a profound sense of disappointment and betrayal. Hopes soared high when the King, in a first-of-a-kind move in the Middle East, commissioned and accepted a genuinely independent report prepared under the leadership of a distinguished judge from Egypt. That report found that Bahrain was guilty of unacceptable human rights violations, including widespread torture in detention.

The King urged dialogue. But that word is not being heard much these days. It seems obvious that His Highness is attempting to sandbag the world, stalling for time.

Meantime, little is being heard from the US, where President Obama finds himself between a rock and a hard place. Bahrain is of strategic importance to American interests, as it is not only a supplier of oil, but host to the US Fifth Fleet.

Bahrain has hired a small army of PR people in the US and the UK to promote the notion that the “unrest” is over. No need to worry about it anymore. These communications gurus also want to see the Bahrain Grand Prix, the Kingdom’s Formula One racing event, rescheduled. It was cancelled earlier because of the violence in the country.

But now, there is an opportunity for the folks who supervise Formula One to show the world that the unrest was never over and is far from being over now. Just last week, two children died from inhaling tear gas fired at them by the security forces.

Formula One can honor these children and demonstrate that there are things more important than money. Helping to ensure the basic rights of a people is surely one of those things. And if Bahrain really values Formula One for its tourism and economic development, that gives the organizers enormous leverage.

We need to urge them to use it.

William Fisher has managed economic development programs for the U.S. State Department and the U.S. Agency for International Development in the Middle East, North Africa, Latin America, Asia and elsewhere for the past 25 years. He has supervised major multi-year projects for AID in Egypt, where he lived and worked for three years. He returned later with his team to design Egypt’s agricultural strategy. Fisher served in the international affairs area in the administration of President John F. Kennedy. He began his working life as a reporter and bureau chief for the Daytona Beach News-Journal and the Associated Press in Florida. He now reports on a wide-range of issues for a number of online journals.

Question:

Answer: The federal government admittedly does not routinely fact-check grant applications for charter schools, and does not allow the private consultants it hires to look at the grant applications to look at any information other than what’s in the grant application.

That’s right, an applicant for a federal grant for a charter school can say whatever they want to in their application, true or false, and nothing they say will be questioned, even if their application has already been exposed as a work of fiction.

This is what’s going on right now with the proposed Tikun Olam Hebrew Language Charter High School, and the epicenter of the fight to stop this school from being approved or getting any federal grant money is my own little town, Highland Park, NJ.

I got involved in the fight against this charter school about a year ago, when one neighbor sent another neighbor my way with a petition opposing the school — a school that is overwhelmingly opposed by the residents of Highland Park, a town with an exceptional public school system and no need for a charter school of any kind, let alone one designed to provide a free religious education to a small number of students at the expense of our public school students.

Needless to say to anyone familiar with my work, I was immediately drawn in by the church/state separation issue of a religious charter school, and initially got involved for that reason, but as I soon found out, this went way beyond a simple church/state issue. The degree to which the founders of this proposed charter school have lied about all aspects of their school on their applications in their quest for approval is nothing short of astonishing.

Now, the founders of this Hebrew Language charter school, led by Highland Park real estate agent Sharon Akman, will insist that the purpose of their proposed school is not religious, and that it will not cater specifically to Jewish students. So, to give the appearance of this not being a specifically Jewish school, they claimed on their charter application that the location of the school would be a Catholic church, St. Mary of Mount Virgin in the neighboring town of New Brunswick. The problem? They lied about that — one of the many whoppers they told in their application. They have no agreement whatsoever with this Catholic church, as Bishop Paul G. Bootkoski of the Diocese of Metuchen has repeatedly made clear.

On May 24, 2011, Bishop Bootkoski sent a letter to New Jersey’s Acting Commissioner of Education Chris Cerf, stating:

“It has been brought to my attention that the Tikun Olam Hebrew Language Charter High School has stated that the parish of St. Mary of Mt. Virgin Church, New Brunswick, NJ has entered into a leasing agreement to operate a charter school at the facility of St. Mary of Mt. Virgin Church. This is not so. In order to clarify the situation, I wish to state that an agreement has not been entered into by the Tikun Olam Hebrew Language Charter High School and St. Mary of Mt. Virgin Church, and will not be approved by the Diocese of Metuchen.”

You’d think this flat denial by the bishop about her charter school having an agreement with this church would have made Ms. Akman change this piece of misinformation in the subsequent applications, right? Wrong! She proceeded to repeat this lie in both her application for her federal grant three months later, and her next (fourth) version of her application to the New Jersey Department of Education in October 2011, five months later.

When Bishop Bootkoski found out that Akman was continuing to use her fictitious agreement with the church, he wrote another letter to Cerf, dated December 14, 2011, again denying that any such agreement existed or would ever exist:

“It has recently been brought to my attention again that the Tikum Olam Hebrew Language Charter High School is applying for a charter for the City of New Brunswick. In May 2011, they claimed to have entered into a leasing agreement to operate the school at the facility of St. Mary of Mt. Virgin Church, New Brunswick, N.J. As I stated in my May 24, 2011 letter to you, no such agreement was approved at that time nor will it be in the future with St. Mary of Mt. Virgin Church or any other Roman Catholic entity in the City of New Brunswick.

“Therefore, I wish to restate that such an agreement has not and will not be accepted by the Catholic entities in New Brunswick or the Diocese of Metuchen.”

Now, you’d think that since providing documentation of a “lease, mortgage or title to its facility” is required to open a charter school, this little matter of Ms. Akman not having the facility she claims to have would have squashed her chances for approval, right? Wrong! Tikun Olam made it through the NJ Department of Education’s first round of cuts in December, which left 17 of the 42 schools that applied in October (which was Akman’s fourth try) in the running for approval.

But, as the New York Times reported last week, the lie about having secured this Catholic church as the location for their school was just one of many lies told by Akman and company, who also claimed to have the support of and/or agreements with quite a few other individuals and institutions that they didn’t have the support of or agreements with. But, of course, with the federal government’s prohibition on looking at any sources outside of the information provided by the grant applicant, none of the letters from these people and institutions denying that they supported the school could be taken into consideration when making the decision to approve a $600,000 grant to the school!

Akman also claimed in her application to have a relationship with the Zimmerli Art Museum at Rutgers University in New Brunswick, although the Associate General Counsel at Rutgers wrote the following e-mail on May 26, 2011 stating that the museum has no relationship with the school.

You recently sent me a letter inquiring as to whether the Tikun Olam Hebrew Language Charter High School founders have “established relationships” with the Jane Voorhees Zimmerli Art Museum” of Rutgers University as claimed in its charter school application.

The application does not describe what kind of relationship the founders have with the Museum. They could be members, they could be contributors, they could volunteer for the Museum. There is, however, no formal relationship between the founders in their capacity as founders of Tikun Olam and the Museum.

I called Ms. Akman and she confirmed that there was no formal relationship with the Museum.

And yet, even after acknowledging in May that her charter school had no formal relationship with the museum, Akman has continued to claim, in both her October 2011 state application and her federal grant application, that the school has an established relationship with the museum.

Then there’s the support that Akman claims from Assemblyman Peter Barnes and Jun Choi, a former mayor of Edison, another town that would be affected by her school. Akman claims in her application that Barnes and Choi “promised to help make connections and build a diverse student body.” But both Barnes and Choi have made it clear that they do not support the school and never gave Akman any such promise of assistance. Neither did Heather Ngoma, the African‐American Director of the New Jersey Charter School Resource Center, another alleged supporter claimed by Akman.

As the Times article said in reference to the federal policy of not allowing outside sources to be used in determining whether or not a charter school should get a federal grant:

“[I]f Ms. Akman writes that Assemblyman Peter J. Barnes III supports the charter, the federal consultants are not permitted to interview Mr. Barnes, who would have been happy to tell them that he does not.

“This prohibition against using outside information is intended to ensure that no special measures are taken to either favor or hinder an applicant, although what it really invites is fiction writing.”

Akman, who has made almost no public statements since the fight to stop her charter school began, declined to speak to the Times, but did give a rare statement to News12 New Jersey regarding her claims about the support of Assemblyman Barnes and former Edison mayor Choi, saying, “We’re not misrepresenting anybody. If they subsequently changed their mind about it, that’s a different thing. But we did not misrepresent them.” Really? They flip-flopped? Is that Akman’s explanation for the statement of non-support from the Bishop of Metuchen and the statement that her school has no agreement with the Zimmerli Art Museum, too?

Other claims made by Akman include the alleged support of New Brunswick’s predominantly Hispanic and black community, although no community survey has been done and the local chapter of the N.A.A.C.P., the Civic League of Greater New Brunswick, and the Puerto Rican Action Board all do not support the school; the crazy notion that a Hebrew school will appeal to low-income Muslims; and that the school will serve students with problems such as “poverty, crime, drugs, HIV/AIDS, academic failure, dropouts, gangs, and other challenges,” as well as special needs students, all without even having as much as a single guidance counselor on its staff. As for its plans on how it will get qualified teachers and provide anything even close to the education available in our public schools, well those aren’t really clear either, but the details of all of that pesky ‘how on earth are these people going to provide anything like an adequate education?’ stuff would require a whole other post.

In a nutshell, what we have is a small group of people who want to start a Jewish charter school for a small community of Jewish students but who need to make it appear that they are starting a secular school that will be chock full of students from every demographic in what is an extremely diverse area in terms of income, race, ethnicity, and religion. But nobody is buying that.

As Highland Park Rabbi Steven Miodownik wrote to acting Education Commissioner Cerf last spring:

“Proponents of the Hebrew language charter school have carefully placed a fig leaf over their agenda of forcing the state to fund their ‘free’ alternative to private Jewish education, but it is not the job of the State of New Jersey to provide religious instruction for its children; that must be left up to our excellent private schools.”

But, what did those federal government consultants who aren’t allowed to look at anything other than the information provided by the grant applicant base their approval on when it came to diversity and community support? Well, all they were allowed to base it on was Akman’s answers to questions like the following on her grant application:

Selection Criteria – Extent of community support for application

1. Note: The Secretary encourages the applicant to describe how parents and other members of the community will be informed about the charter school, and how students will be given an equal opportunity to attend the charter school.

Strengths:

The applicant provided a detailed description of the ways in which it has conducted community outreach to help ensure diversity of the student population at the proposed charters school. The applicant cites meeting outcomes from a number of sessions with leading political and civic leaders who have expressed an interest in helping to tell the community about the proposed charter school. The applicant has proposed hiring a Community Outreach Coordinator to assist with helping members of the community who do not speak Hebrew (i.e. not Jewish) about the school and its commitment to repairing the world or perfecting the world. The applicant has also indicated that a proposed facility for the charter school is a former Catholic school located in a mostly minority, low-income New Brunswick neighborhood. The applicant believes this is a strong statement of the proposed charter school’s commitment to ensure that an equal opportunity to attend the school is given to all.

Weaknesses:

There are no weaknesses in addressing the this application requirement.

Right, there are “no weaknesses in addressing this application requirement,” unless, of course, you consider the whole thing being a pack of lies to be a weakness!

While the $600,000 federal grant will only be received if the school is approved by the N.J. Department of Education, Ms. Akman wasted no time in informing the acting Education Commissioner that her grant had been approved, giving her school a potential leg up in the state’s final decision, expected this week.

Finally, getting back to the church/state separation aspect of this Hebrew school, which is what got me involved in the first place, I have to include the ludicrous reason given by Akman in her effort to make her Tikun Olam Hebrew Language Charter High School sound like it has a necessary, secular purpose. Ready for this? Akman claims that the teaching of Hebrew is vital to America’s national interests because the United States does so much business with Israel (even though the official business language of Israel is … um …. English).

Last spring, I was part of what we called our “documentation committee,” a committee formed to thoroughly examine the version of school’s charter application that was current at that time. For my part on this committee, I did exactly what anyone familiar with my other work would expect me to do — I checked out the sources cited by the school’s founders to support their ridiculous ‘teaching Hebrew is vital to our national interests’ claim. And what I found, of course, was that they had misquoted and misrepresented the sources they cited to make them support their claim.

While the school’s latest application has dropped parts of what was debunked in the previous application, this will give you an idea of the depths of scholarly deception — on top of all their other deceptions — that these Liars For Yahweh have stooped to in their attempt to get their school approved.

Ms. Akman and her cohorts should not only be flatly denied a charter to start their school, but should be prosecuted under Title 18, §1001 of the U.S. Code, the federal statute prohibiting the making of false statements to federal officials, which carries a penalty of up to five years in prison for anyone who “knowingly and willfully makes any materially false, fictitious, or fraudulent statement or representation” or “makes or uses any false writing or document knowing the same to contain any materially false, fictitious, or fraudulent statement or entry.”

Additional resources: Mother Crusader, the blog of Highland Park resident Darcie Cimarusti, who since last spring has made it her full-time job to stop the Tikun Olam charter school; Speak Up Highland Park; and Save Our Schools NJ.

Chris Rodda is the Senior Research Director for the Military Religious Freedom Foundation (MRFF), and the author of Liars For Jesus: The Religious Right’s Alternate Version of American History.

Mohamed M. ElBaradei, Director-General, International Atomic Energy Agency, Vienna, captured during the session 'Stopping the Spread of Nuclear Weapons' at the Annual Meeting 2007 of the World Economic Forum in Davos, Switzerland, January 25, 2007. Photo/Wikimedia

After months of performing like Egypt’s Cinderella leader, jet-setting between Cairo and his old home in Vienna, Mohamed ElBaradei has finally reached the limits of his frustration.

At a press conference last week, ElBaradei said the Supreme Council of the Armed Forces, which took over from Mubarak, had governed “as if no revolution took place and no regime has fallen”.

“My conscience does not permit me to run for the presidency or any other official position unless it is within a democratic framework,” the former head of the UN nuclear watchdog said.

His surprise resignation came as a protest to the ruling military council’s failure to put the country on the path to democracy. The Supreme Council of the Armed Forces, a group of the Egypt’s highest military officers, took over as “interim rulers” of the country immediately after the February 11 resignation of 30-year-dictator Hosni Mubarak, Mubarak, now 83 years old, is currently on trial along with a number of high-level political and military figures for corruption and for killing peaceful demonstrators in Tahrir Square, where the Arab Spring revolution was born.

In the pre-Tahrir Square days, ElBaradei was among prominent Egyptians constantly mentioned for the post of president, should the revolution succeed. He played a somewhat coy game during this period, expressing reservations about taking on the monumental task of leading his countrymen into a new era of non-corrupt, transparent and responsive government.

The Nobel laureate, regarded as a driving force behind the movement that forced the former president Hosni Mubarak to step down, told the Guardian newspaper that the conditions for a fair election were not in place.

With Parliamentary elections to the lower house over, and the parties of the Muslim Brotherhood and the yet more conservative Salafists winning more than enough seats to effectively control the lower body, it was highly doubtful that ElBaradei could have won enough support from the Liberal parties to gain the presidency.

But it would be a big mistake to count the Nobel-prize-winner out just yet. The historic journey along Egypt’s road to good governance has barely begun.

The polished international diplomat again called on the SCAF and their puppet civilian government to move with all possible speed to enact fundamental political reforms. The citizens of the Arab world’s largest nation were “yearning desperately for economic and social change” and that without drastic improvements, a “Tunisia-style explosion” in Egypt would be unavoidable, he told the Guardian.

Nearly half of the country’s 80 million citizens live on less than £1.25 a day, and despite record GDP growth the majority of the population has become poorer in real terms over the past 20 years. Unemployment is epidemic, Graduates with PhD degrees are driving taxies or working as waiters. Many of the members of the last two graduating classes of Cairo University have never held any job for which they were trained.

However, Baradei has rejected the idea of a “second revolution” – a huge gathering in Tahrir Square, much like those of the recent past – because of the very real possibility of widespread violence and death.

William Fisher has managed economic development programs for the U.S. State Department and the U.S. Agency for International Development in the Middle East, North Africa, Latin America, Asia and elsewhere for the past 25 years. He has supervised major multi-year projects for AID in Egypt, where he lived and worked for three years. He returned later with his team to design Egypt’s agricultural strategy. Fisher served in the international affairs area in the administration of President John F. Kennedy. He began his working life as a reporter and bureau chief for the Daytona Beach News-Journal and the Associated Press in Florida. He now reports on a wide-range of issues for a number of online journals.

Photo: kalavinka; Edited: Jared Rodriguez/Truthout

This exclusive report was written by Jason Leopold and originally publishedon Truthout

Have you ever filed a Freedom of Information Act (FOIA) request with the FBI and received a written response from the agency stating that it could not locate records responsive to your request?

If so, there’s a chance the FBI may have found some documents, but for unknown reasons, the agency’s FOIA analysts determined it was not responsive and “blackballed” the file, crucial information the FBI withholds from a requester when it issues a “no records” response.

The FBI’s practice of “blackballing” files has never been publicly disclosed before. With the exception of one open government expert, a half-dozen others contacted by Truthout said they were unfamiliar with the process of “blackballing” and had never heard of the term.

Trevor Griffey learned about “blackballing” last year when he filed a FOIA/Privacy Act request with the FBI to determine whether Manning Marable, a Columbia University professor who founded the Institute for Research in African-American Studies, sought the FBI’s files on Malcolm X under FOIA. At the time of his death last April, Marable had just finished writing an exhaustive biography on the late civil rights activist. Griffey filed the FOIA hoping he would receive records to assist him with research related to a long-term civil rights project he has been working on.

In a letter the agency sent in response to his FOIA, the FBI told Griffey that it could not locate “main file records” on Marable responsive to his request. Last November, in response to a FOIA request Truthout filed with the FBI for a wide-range of documents on the Occupy Wall Street, the agency also said it was unable to “identify main file records responsive to [our] FOIA,” despite the fact that internal FBI documents related to the protest movement had already been posted on the Internet. The FBI has been criticized in the past for responding to more than half of the FOIA requests the agency had received by claiming it could not locate responsive files.

Griffey, who also teaches US history at The Evergreen State College in Olympia, Washington, and is co-editor of the book, “Black Power at Work: Community Control, Affirmative Action and the Construction Industry,” was baffled. He found it difficult to believe that Marable would not have filed a FOIA for Malcolm X’s FBI file. So, he sent an email to an FBI FOIA analyst asking for clarification.

The FBI FOIA analyst responded to Griffey in an email, asking him to supply additional “keywords” to assist in a search of the agency’s main file records for documents on Marable responsive to his FOIA request. The analyst then disclosed to Griffey, perhaps mistakenly, that a search for previous requests for records on Marable turned up a single file that was “blackballed” per the agency’s “standard operating procedure.”

So last May, Griffey again turned to FOIA, this time to try and gain insight into the blackballing process. He filed a FOIA request with the FBI seeking a copy of the agency’s standard operating procedure for “blackballing” files.

Two months later, he received five pages from an untitled and undated PowerPoint presentation that outlined procedures for blackballing files from FOIA requests. The FBI cited three exemptions under the law to justify withholding a complete and unredacted copy of the PowerPoint:

(b)(6) Personnel and medical files and similar files, the disclosure of which would constitute a clearly unwarranted invasion of personal privacy.

(b)(7) Records or information compiled for law enforcement purposes, but only to the extent that the production of such law enforcement records or information:

C. Could reasonably be expected to constitute an unwarranted invasion of personal privacy;

E. Would disclose techniques and procedures for law enforcement investigations or prosecutions or would disclose guidelines for law enforcement investigations or prosecutions if such disclosure could reasonably be expected to risk circumvention of the law …

Griffey appealed the FBI’s decision to withhold information contained in the PowerPoint under the (b)(7)(E) exemption, but it was denied.

Still, the PowerPoint pages the FBI did turn over to Griffey provide insight into the “blackballing” process. On a page titled, “Blackball Files,” it says files identified as 190 and 197 “main files,” which are FBI classifications pertaining to FOIA/Privacy Act requests for files on people and civil litigation, are blackballed unless “specifically ask[ed] for” by the requester when an initial FOIA request is made.

Moreover, the agency deems certain “control files,” “separate files which relate to a specific matter and is used as an administrative means of managing, or ‘controlling’ a certain program or investigative matter,” that pop up and are unresponsive to a FOIA to be ripe for blackballing. However, a FOIA analyst must first get permission from a supervisor before a “control file” can be blackballed.

Finally, according to the PowerPoint, some files are automatically blackballed by an FBI FOIA analyst, but the public is not permitted to know the classification of files that fall into that category because the FBI redacted that part of the PowerPoint, claiming disclosure would reveal “techniques and procedures for law enforcement investigations and procedures.”

“Not only are we not told when the FBI withholds material from FOIA requests, but we are not even allowed to know all of the kinds of material it withholds,” Griffey told Truthout. “The law itself and not just its enforcement, is now effectively secret.”

But Bill Carter, an FBI spokesman, told Truthout in an interview that “blackballing” is not about secrecy nor is the process used in any way to conceal responsive records, which the Justice Department revealed it has been doing for more than two decades in certain cases.

“Blackball is a term of art used by the [FBI's] FOIA section people in the records management division,” he said. “It’s an unfortunate term. It applies to people and events. It means that we pulled a file that initially looked responsive but after a review it turned out it wasn’t because the file didn’t match the requesters’ specific request” for records.

Carter sent Truthout an email that contained an explanation of the blackballing process as provided to him by Dennis Argall, the assistant section chief of the Record/Information Dissemination Section, FBI’s Records Management Division:

“[B]lackball” is a term we typically use to describe a file (not a request) that initially looked responsive but upon review we find it’s for a different guy or event. It can also be used to describe a file that we won’t process because, i.e., a guy makes a request for his “FBI file” in 2005 and [we] process it for him. When he makes another request for his “FBI file” in 2011, we will only process his “records” but will not process the file that was created to respond to the 2005 FOIA request, which is 190 file series [the classification the FBI uses for files requested on people].

That’s exactly how the FBI described the blackballing process to attorney Kel McClanahan, executive director of Arlington, Virginia-based National Security Counselors, a public interest law firm.

McClanahan told Truthout in an email interview that he first learned about blackballing when the term was used in a set of FBI “processing notes” he requested from the agency to determine how FBI FOIA analysts had handled one of his FOIA requests.

Although McClanahan believes there is “definitely a place for blackballing in the FOIA process” he said the way the FBI “does blackballing leaves a lot to be desired.”

“First of all, even though [the FBI] may blackball 50 records and release 3, they never tell the requester about the 50,” McClanahan said, hitting on Griffey’s main complaint about blackballing. “They never mention word one about ‘and we found other records that we deemed non-responsive.’ The requester is left to wonder why the FBI only found 3 records about the subject in question and he will never know that they found 50 others that they ultimately deemed non-responsive unless he has the foresight to FOIA the FBI’s processing notes for his request. Knowledge like that is very important when a requester is trying to decide whether or not to tie up [the FBI's Office of Information Policy] with an administrative appeal, let alone litigation.”

McClanahan said his concerns would largely be addressed if the FBI “only blackballed records for good reasons.”

“If I could trust the FBI only to blackball things that were clearly non-responsive, I don’t need to know that they found completely unrelated records,” he added. “However, that’s not what the FBI does. I have seen it blackball records because they ‘weren’t FBI records,’ even though they were in FBI files (they were FBI copies of other agencies’ records, which any FOIA person worth his salt knows are still responsive to a FOIA request made to FBI). I’ve seen it blackball records because the request asked for ‘internal FBI records’ and the records in question were sent outside of the FBI, based on a strained interpretation of the word ‘internal.’”

The FBI will be forced to make a choice “if it wants to apply FOIA correctly,” McClanahan said.

“The agency can either limit its blackballing to records that nobody would think are responsive (e.g. different people with the same name, records outside a set time frame); or it can tell requesters in the administrative stage that it determined that certain records were non-responsive and why,” he said. “Failing to do either, however, is bad FOIA.”